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U.S. v. ALLIEDSIGNAL

August 18, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALLIEDSIGNAL, INC. AND AMPHENOL CORP., DEFENDANTS. ALLIEDSIGNAL, INC. AND AMPHENOL CORP., THIRD-PARTY PLAINTIFFS, V. TOWN OF SIDNEY, NEW YORK, VILLAGE OF SIDNEY, NEW YORK, TOWN OF MASONVILLE, NEW YORK, AND TOWN OF TOMPKINS, NEW YORK, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: McAVOY, Chief Judge.

  MEMORANDUM — DECISION & ORDER

The United States of America commenced the instant litigation against defendants Alliedsignal, Inc. and Amphenol, Corp., as successors in interest of the Bendix Corp. (collectively "Alliedsignal" or "defendants"), pursuant to section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9607 ("CERCLA"), seeking recovery of costs incurred by the United States with respect to the release or threatened release of hazardous substances at or from the Sidney Landfill Superfund Site (the "SLF" or the "Site") located in the Towns of Masonville and Sidney, New York. Defendants, in turn, commenced a third-party action against the Town of Sidney, the Village of Sidney, the Town of Masonville, and the Town of Tompkins (collectively the "municipal defendants") seeking: (1) recovery for past and future response costs at the Site pursuant to 42 U.S.C. § 9607; (2) contribution for all past and future response costs pursuant to 42 U.S.C. § 9613, N.Y.C.P.L.R. § 1401, and common law; (3) indemnification; and (4) a declaratory judgment defining the future obligations of the parties. Presently before the Court is the United States' motion for entry of a consent decree between the United States and the municipal defendants, and the municipal defendants' motion pursuant to FED. R. CIV. P. 56 seeking dismissal of the Third-Party Complaint.

I. BACKGROUND

In the early 1960s, Devere S. Rosa ("Rosa") purchased a garbage route in the Town of Sidney, New York. The purchase included a parcel of land now known as the Richardson Hill Road Landfill (the "RHRL"). Rosa contracted with individual residents in the area to collect their refuse and deposit it at the RHRL.

On July 9, 1964, the Town of Sidney entered into a five-year contract with Rosa for the use of the RHRL. In particular, the parties contracted "for disposal . . . of all garbage and refuse from that portion of the Town of Sidney located outside the corporate limits of the Village of Sidney, as well as used residue oil as disposed of by the Scintilla Division of the Bendix Aviation Corporation, located at Sidney, New York." Pursuant to the agreement, Rosa agreed to "provide such sanitary land fill operation, . . . take care of and handle all of such material deposited," maintain the landfill in proper condition, ensure reasonable access to the landfill, conduct the landfill "in a manner satisfactory and acceptable to the New York State Department of Health," keep the landfill open and available for use "Monday through Saturday from 7 a.m. to 4 p.m.," and to "collect and pick up garbage at the East Sidney Dam Recreation Area at least once per week." Aside from garbage at the East Sidney Dam Recreation Area, Rosa was not responsible for collecting garbage. In exchange, the Town of Sidney agreed to pay Rosa an annual fee. Residents were still obligated to contract with a hauler to have their garbage picked up and disposed of at the RHRL.

On October 31, 1964, the Town of Sidney and Village of Sidney (the "Sidney Defendants") entered into a five-year agreement with Rosa's father, Devere D. Rosa ("Devere"),*fn1 for the use of the RHRL. This agreement was substantially similar to the July 1964 agreement, except that it now permitted residents of the Village of Sidney to also use the landfill in exchange for an annual fee.

In or about 1964, Devere also contracted with the Bendix Corporation ("Bendix")*fn2 to collect and dispose of their waste oil and other waste from their Scintilla Division in the Town of Sidney, New York.*fn3

In 1966, a brook located near the RHRL caught fire. Investigation by the New York State Department of Health ("DOH") revealed that oil had discharged from the RHRL to the brook and caught fire. As a result, the DOH directed Devere to cease disposing oil from Bendix at the RHRL.

On November 17, 1967, Devere purchased the SLF, which is located on the opposite side of the road from the RHRL, at a tax sale. On December 1, 1967, Devere began dumping waste at the SLF. On or about December 19, 1967, the DOH inspected the Site and found that it suffered from numerous environmental deficiencies. Accordingly, the DOH ordered Devere to discontinue dumping immediately at the Site. DOH inspections in January and February 1968 indicated that Devere complied with the DOH's order and that the Site was not being used for dumping. At some point in time, however, Devere resumed dumping at the Site. An April 1968 memorandum from the DOH regarding a recent inspection indicated that no oil had been dumped at the Site. A May 1968, DOH inspection, however, revealed that oil had recently been disposed of at the Site. Because of the hazards the Site posed to the local water supplies and because Devere had not applied for a permit to operate the Site, the DOH ordered him to cease further use of the Site and compact and cover all refuse. Notwithstanding the DOH's order, Devere continued to dump refuse at the Site. A June 1968 DOH investigation again revealed the presence of waste oil at the Site. That investigation also revealed that the RHRL was still being used for dumping. A June 17, 1968 memorandum by the DOH noted that "considerably more oil has been dumped . . . at th[e] [SLF]."

The United States and the municipal defendants contend that Bendix disposed of its waste oil and solvents at the SLF between approximately 1967 and 1969. Bendix, on the other hand, insists that beginning in approximately 1966, when it was directed to cease sending waste oils and solvents to the RHRL, it returned to its prior practice of disposing of such wastes at the Hill Site. According to Bendix, this continued until mid-1969 when Bendix acquired a Prenco incinerator, which obviated the need to send out the waste oils and solvents.

In 1970, Devere entered into an agreement with the Sidney Defendants, which was substantially similar to the prior 1964 agreements. The primary differences in the 1970 agreement were that it no longer referenced the dumping of oil from Bendix, it omitted the prohibition on individual or private dumping, and Rosa was no longer required to collect refuse from the East Sidney Dam Recreation Area. The parties dispute whether the 1970 contract referenced dumping at the RHRL or the SLF.*fn4

On or about April 1, 1971, James W. Bartlett ("Bartlett") took possession of the Site from Devere. Bartlett continued to dispose of waste at the Site until he closed it on or about October 31, 1972.

In or about 1987, the New York State Department of Environmental Conservation investigated the Site and found the presence of hazardous substances, including metals, volatile organic compounds ("VOCs"), and polychlorinated biphenyls ("PCBs"). In 1989, the Site was included on the National Priorities List of Superfund Sites. The Environmental Protection Agency ("EPA") conducted a Remedial Investigation ("RI") and Feasibility Study ("FS") at the Site. The RI indicated the presence of various hazardous substances, including PCBs, trichloroethylene ("TCE"), and other VOCs. In a Record of Decision ("ROD") dated September 28, 1995, the EPA selected a remedy for the Site that included: (1) constructing four independent closure caps consistent with the requirements of New York State regulations at 6 N.Y.C.R.R. Part 360; (2) extracting contaminated groundwater from a certain bedrock acquifer, followed by air stripping or other appropriate treatment, and discharge to surface water (hot spot groundwater extraction); (3) restricting the installation and use of groundwater wells at the Site and the future use of the Site to protect the integrity of the caps; and (4) long-term monitoring of groundwater, surface water, and sediment. The ROD also contained a contingent remedy that included Site-wide extraction and treatment of groundwater if monitoring did not demonstrate that the groundwater quality in the bedrock aquifer would likely be restored within a reasonable time by natural attenuation. On July 5, 1996, the EPA determined that there was an actual or threatened release of hazardous substances at the Site that presented an imminent and substantial endangerment to the public health, welfare or the environment, and issued an Administrative Order directing Alliedsignal to perform the remedial design described in the ROD.

On March 28, 1997, the EPA commenced the instant litigation against defendants pursuant to 42 U.S.C. § 9607 seeking recovery of costs incurred in responding to the release or threatened release of hazardous substances at the SLF. On January 21, 1998, defendants filed a Third-Party Complaint against the municipal defendants asserting claims for contribution and indemnification, and seeking a declaratory judgment.

The EPA subsequently entered into administrative settlements with de minimis potentially responsible parties ("PRPs") (parties who are deemed to have contributed minimal amounts of hazardous substances or contributed hazardous substances the toxicity of which is minimal in comparison to other hazardous substances at the site, see 42 U.S.C. § 9622(g)).

The EPA also entered into a Consent Decree with the municipal defendants. Based upon information provided by Susan McIntyre ("McIntyre"), the Solid Waste Coordinator of the Delaware County Department of Public Works, each municipality was found to have deposited the following amounts of waste at the Site:

Municipal Defendant      Tons of Waste Deposited
  Town of Sidney           2,040.00
  Village of Sidney        8,792.00
  Town of Masonville         697.50
  Town of Tompkins           332.50

Relying on a policy statement issued by the EPA regarding settlements with municipalities, the EPA determined the per ton clean up cost to be $5.30. Thus, the Consent Decree called for the following payments, which are calculated by multiplying the tons of waste deposited by each municipality by $5.30:

  Town of Sidney:        $10,812.00
  Village of Sidney:     $46,597.60
  Town of Masonville:    $3,696.75
  Town of Tompkins:      $1,762.25

In accordance with statutory procedure, the EPA published the proposed Consent Decree in the Federal Register, allowing for public comment. Only Alliedsignal submitted comments regarding the Consent Decree.

Presently before the Court is the United States' motion for Court approval of the Consent Decree and the municipal defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Third-Party Complaint in its entirety.

II. DISCUSSION

A. Approval of the ...


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